Holland v BT Securities Limited (No 3)

[2023] FCA 961

FEDERAL COURT OF AUSTRALIA

Holland v BT Securities Limited (No 3) [2023] FCA 961

File number(s):

SAD 162 of 2021

Judgment of:

O'SULLIVAN J

Date of judgment:

7 August 2023

Date of publication of reasons:

14 August 2023

Catchwords:

PRACTICE AND PROCEDURE – application for indemnity costs – where defendant made offer pursuant to r 25 of the Federal Court Rules 2011 (Cth) – where defendant also made Calderbank offer – whether rejection of the offer was imprudent or unreasonable – where plaintiffs to pay indemnity costs from 2 business days after offer pursuant to r 25 of the Rules

Legislation:

Federal Court Rules 2011 (Cth), rr 25, 25.14(2)

Cases cited:

Calderbank v Calderbank [1975] 3 All ER 333

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225

SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Ltd [2015] FCA 949

Division:

General Division

Registry:

South Australia

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

7

Date of hearing:

7 August 2023

Counsel for the Plaintiffs:

The plaintiffs appeared in person

Counsel for the Defendant:

Ms T Flaherty

Solicitor for the Defendant:

Dentons Australia Limited

ORDERS

SAD 162 of 2021

BETWEEN:

MARK WILLIAM HOLLAND

First Plaintiff

VIVIENNE LESLEIGH HOLLAND

Second Plaintiff

AND:

BT SECURITIES LIMITED (ACN 000 720 114)

Defendant

ORDER MADE BY:	O'SULLIVAN J
DATE OF ORDER:	7 AUGUST 2023

THE COURT ORDERS THAT:

1.The plaintiffs are to pay the defendant’s costs of and incidental to the proceedings up to and including 11.00am on 13 December 2021 on a party-party basis.

2.From 11.00am on 13 December 2021, plaintiffs are to pay the defendant’s costs of and incidental to the proceedings on an indemnity basis.

3.If the parties are unable to agree costs, the costs are to be assessed by a Registrar of the Court upon application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’SULLIVAN J:

1. Judgment was delivered in this matter on 20 July 2023 in which the plaintiffs’ claims were dismissed.

2. On 9 December 2021, the defendant had filed and served a formal offer pursuant to r 25 of the Federal Court Rules 2011 (Cth) (FCR) in the sum of $20,000 inclusive of costs and interest.  At the same time, the defendant offered the same sum on the same basis by way of a Calderbank offer:  Calderbank v Calderbank [1975] 3 All ER 333.

3. I am satisfied that the failure to accept the formal offer was both imprudent and unreasonable. 

4. The defendant seeks indemnity costs from the start of the proceedings on the basis there was no prospects of success:  Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 at 233 and SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Ltd [2015] FCA 949 at [2].

5. Although their case was weak, and some of the causes of action had no prospects of success, nonetheless, I am not satisfied the plaintiffs should pay costs on an indemnity basis from the start of the proceedings.

6. Pursuant to FCR 25.14(2), the plaintiffs are to pay the defendant’s costs on an indemnity basis from 11.00am on 13 December 2021. 

7. The orders of the Court will be:

   (1)The plaintiffs are to pay the defendant’s costs of and incidental to the proceedings up to and including 11.00am on 13 December 2021 on a party-party basis.

   (2)From 11.00am on 13 December 2021, plaintiffs are to pay the defendant’s costs of and incidental to the proceedings on an indemnity basis.

   (3)If the parties are unable to agree costs, the costs are to be assessed by a Registrar of the Court upon application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

Associate: 

Dated:       14 August 2023